Today’s ruling by the European Court of Justice was expected, but it does confirm that a new referendum is becoming more likely. If the UK wanted to cancel Brexit, it could do so without having to seek permission of the other EU members: this makes another referendum easier.
Even so, it is not exactly straightforward. The most likely way a new referendum could happen would be, if parliament voted for it, that the government asked for a postponement of Brexit to give us time to hold one.
There isn’t time to hold a referendum under normal rules before 29 March, and there is no way the legislation could be taken through a hung and divided parliament in time anyway.
So Theresa May – or whoever else might be prime minister – would have to ask for an extension to the Article 50 deadline. This would require the unanimous agreement of the leaders of the other EU countries. That means that there is always a danger that one country might object, or try to use its leverage to gain something else – such as the Spanish with Gibraltar or the French with our fish.
The ECJ ruling gives the UK a short cut through that. Instead of extending the Article 50 period, we could simply revoke our notice of intention to leave and hold the referendum that way.
There are problems with that. That means that, if the people voted again to leave, the Article 50 procedure would have to start again from the beginning (“square one”, May calls it), with another two years from the summer or autumn of 2019, whenever the referendum is held.
The other problem is that the ECJ might rule that this was an abuse of Article 50, because we would be revoking our intention to leave before we, as a nation, had actually decided to stay. When the court’s advocate general gave his opinion last week, he said the right to revoke could not be used as an “abusive process” – that is, as a negotiating tactic.*
However, the ECJ ruling, although it followed the advocate general’s opinion on the substance of the question, does not repeat his warning against an “abusive process”. So the court would probably allow a revocation for the purposes of a referendum, because it interprets EU law in whatever way best promotes “ever closer union” of the peoples of Europe.
Indeed, today’s judgment says a member state must have the unilateral right to revoke a decision to leave because that is more compatible with “ever closer union”.
All the same, the better way for the UK to hold a referendum would be to extend the Article 50 deadline. The ECJ ruling makes clear that the right to revoke Article 50 would continue during such an extension.
That would give the UK time to hold a referendum, and it would also, crucially, allow such a vote to be on two clearly defined options. One would be May’s deal, already drafted and ready to go; the other would be to stay on existing terms – rebate, euro opt-out and all – simply by revoking Article 50.
The one option that would not be on the ballot paper, I think, is a no-deal Brexit, as it has so little support in the House of Commons. And in any case, we are getting ahead of ourselves. There is no majority in the Commons for a referendum yet. There cannot be until Jeremy Corbyn comes out in favour and asks his MPs to vote for it. He seems reluctant although he may eventually be overruled by his shadow cabinet. But even then it is not clear that there are enough pro-EU Tory MPs to make it happen.
Today’s ruling, nevertheless, makes it easier to hold a referendum, and easier to hold a referendum to choose between two clear options, unlike the 2016 vote which was between a defined option and an undefined one.
*Update, 2pm: Guido Fawkes points out that the ECJ also says the revocation of Article 50 notice has to be “unequivocal and unconditional”, which would hardly be the case if it were simply to allow a referendum to take place.